Arruda v. Newport Construction Corporation

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22-P-716 Appeals Court
JOAN ARRUDA vs. NEWPORT CONSTRUCTION CORPORATION.
No. 22-P-716.
Middlesex. February 14, 2023. – July 21, 2023.
Present: Henry, Shin, & Hodgens, JJ.
Negligence, Duty to prevent harm, Causation. Way, Public:
defect. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on
April 23, 2018.
The case was heard by Christopher K. Barry-Smith, J., on a
motion for summary judgment.
Robert I. Feinberg (Colleen M. Santora also present) for
the plaintiff.
Steven C. Kennedy for the defendant.
HODGENS, J. While walking into a crosswalk with her
granddaughter at dusk, the plaintiff caught her foot on a
protruding granite block, fell, and sustained injuries. This
granite block formed part of a decorative margin for the
crosswalk and should have been flush with the surrounding
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roadway, but the defendant construction contractor caused the
margin to protrude above the roadway by one-half inch. The
defendant intended to repair the defect months later when
applying the final course of asphalt but provided no warning to
pedestrians at the time of the incident. After the plaintiff
filed a complaint alleging negligence, a Superior Court judge
allowed the defendant's motion for summary judgment and
concluded that the one-half inch defect was "too minor or
insubstantial" to support a negligence claim. We vacate the
judgment and remand for further proceedings.
Background. We summarize the facts in the light most
favorable to the plaintiff, Joan Arruda, as the party opposing
summary judgment. See FBT Everett Realty, LLC v. Massachusetts
Gaming Comm'n, 489 Mass. 702, 704 (2022). See Mass. R. Civ.
P. 56 (c), as amended, 436 Mass. 1404 (2002). Newport
Construction Corporation (Newport), the defendant construction
contractor, reconstructed four streets in Cambridge, including
Thorndike Street. Prior to September 8, 2017, Newport excavated
the existing asphalt roadway and cobblestone base of Thorndike
Street, laid a new gravel base, and covered the base with a
"binder" course of asphalt. This binder course left a one-
quarter to one-half inch difference in elevation between the
granite margin of the crosswalk and the roadway surface. A
passenger in a vehicle would "barely feel" the protrusion when
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driving over the crosswalk and approaching the stop sign at the
intersection. Newport planned to apply in the spring a final
course of asphalt that would make the roadway surface flush with
the protruding granite margin of the crosswalk.
At about 6 P.M., on September 8, 2017, Arruda walked
through Cambridge with her granddaughter to attend a
neighborhood festival. As they diagonally crossed Thorndike
Street into the crosswalk, Arruda caught her foot on the
protruding granite margin, fell, and sustained injuries. At the
time of the incident, the granite protrusion was not highlighted
by any traffic cones, warning signs, or paint.
Arruda filed a complaint in the Superior Court and claimed
that Newport negligently maintained the roadway and walkway and
failed to provide a warning of the defect. A Superior Court
judge allowed Newport's motion for summary judgment. The judge
concluded, "In the context of resurfacing a street, that one-
half inch difference in elevation is sufficiently small that a
reasonable person -- namely, the street contractor -- would not
anticipate injury and guard against it."
Discussion. "Ordinarily, 'summary judgment is not an
appropriate means to resolve negligence cases, because usually
the question of negligence is one of fact.'" Doe v. Boston Med.
Ctr. Corp., 88 Mass. App. Ct. 289, 291 (2015), quoting Roderick
v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994). A viable
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negligence claim consists of four elements: "[(1)] [the]
defendant owes a duty of reasonable care to the plaintiff,
[(2)] the defendant committed a breach of that duty, [(3)] the
plaintiff suffered damage, and [(4)] a causal relationship
existed between the breach of duty and the damage." Heath-
Latson v. Styller, 487 Mass. 581, 584 (2021). While the
existence of a duty is a question of law, the remaining elements
are considered "to be the special province of the jury." Jupin
v. Kask, 447 Mass. 141, 146 (2006). "[A] party moving for
summary judgment in a case in which the opposing party will have
the burden of proof at trial is entitled to summary judgment if
he demonstrates . . . that the party opposing the motion has no
reasonable expectation of proving an essential element of that
party's case." Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716 (1991). We review the judge's summary judgment
decision "de novo." Kennedy v. Abramson, 100 Mass. App. Ct.
775, 777 (2022).
Newport has not demonstrated that Arruda has no reasonable
expectation of proving an essential element of her negligence
case. The record shows that Newport was a contractor in the
process of reconstructing Thorndike Street. As a matter of law,
Newport owed a duty of care to pedestrians, like Arruda, who
walked across that street and encountered the construction
defect. See Meyer v. Veolia Energy N. Am., 482 Mass. 208, 209
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(2019) (contractor that "created a particular defect" in roadway
subject to negligence claim of injured bicyclist); Seltzer v.
Amesbury & S. Gas Co., 188 Mass. 242, 244 (1905) (liability was
based on contractor's act of "digging a pit and leaving it
insufficiently or improperly filled, thus creating an
obstruction to public travel"). Viewed in a light most
favorable to Arruda, the record also contained factual support
for the remaining elements of her negligence claim. Newport
knew about the protruding "lip" of the granite margin and
planned to eliminate it in the spring through the application of
a final course of asphalt that would make the roadway surface
flush with the granite. At the time of the incident, the
granite protrusion lacked any traffic cones, warning signs, or
paint. As Newport's construction manager put it, he believed
paint was not necessary because the protrusion was "not in a
pedestrian path of travel." Arruda and her granddaughter
diagonally crossed Thorndike Street into the crosswalk where
Arruda caught her foot on the protruding granite margin, fell,
and sustained injuries. Jurors need to sift through these facts
and weigh the evidence to decide whether Newport's conduct
amounted to a breach of its duty of care and caused the injury
to Arruda. See Regan v. John J. Amara & Sons Co., 348 Mass.
734, 737 (1965) ("jury could have found that [contractor] knew
or ought to have known of the defective condition of the street
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and was negligent in failing to take adequate precautions");
Scholl v. New England Power Serv. Co., 340 Mass. 267, 270 (1960)
(jury question presented where contractor "fail[ed] to warn
travellers of the excavation" in city street).
Contrary to Newport's claim, the height of the defect,
standing alone, is not determinative of the negligence claim as
a matter of law. Newport contends that the half-inch protrusion
of the granite margin above the binder layer of asphalt was "too
minor or insubstantial to support a negligence claim." Rather
than focusing exclusively on the height of the protrusion, the
"necessary inquiry is whether the defect is so minor or
insubstantial that a reasonable person would not have
anticipated injury and guarded against it." Doherty v. Belmont,
396 Mass. 271, 275 (1985). This broader inquiry, under the
reasonable person standard, focuses not just on the height of
the defect but also on its origin, location, and duration.
Properly focused, the inquiry shows that Newport's application
of the binder course of asphalt to the roadway surface left the
protrusion (or "lip") of the granite margin along the edge of
the crosswalk. According to the construction manager, a final
layer of asphalt could have been applied over the binder layer
"the next day," but "the scope of the project" called for
leaving the protrusion in place for a "longer duration" until
the spring. In the interim, the protrusion lacked any warning
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of its unfinished, defective condition at the time of Arruda's
injury. Based on the record here, a jury could conclude that
Newport was aware,1 or should have been aware, of the defect and
should have anticipated a potential injury, but "nonetheless
failed to take steps to eliminate this risk" through adequate
warnings or other remedial action. Id. Whether such a
conclusion should ultimately be drawn is a factual question
within "the special province of the jury." Jupin, 447 Mass. at
146.
Newport's creation of the protruding granite margin and
knowledge of the defect distinguish this case from those in
which liability cannot be imposed for insignificant conditions.
See Pastrick v. S.S. Kresge Co., 288 Mass. 194, 195, 197 (1934)
("no defect and no unusual danger" where "sum of the width and
height in the stairway in question gave 'an abnormally high
cadence' to the pacing of an ordinary person"); Rosenthal v.
Central Garage of Lynn, Inc., 279 Mass. 574, 575 (1932) (shiny
and smooth condition of stair treads that was "merely as the
result of wear" did not constitute defect that rendered stairs
unsafe); Douglas v. Shepard Norwell Co., 217 Mass. 127, 130
(1914) (loose carpet and gradual, slight ridge did not
The construction manager also testified that the
1
protruding granite "probably was painted" at some time, but
likely wore off by the time of the incident.
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constitute defect "which the defendant ought to have
discovered"); Ware v. Evangelical Baptist Benevolent &
Missionary Soc'y of Boston, 181 Mass. 285, 286-287 (1902) (step
from hallway into adjoining room "cannot be regarded as
defective"); Jennings v. Tompkins, 180 Mass. 302, 302-303 (1902)
("there is not a defect" from nail protruding 3/16 of inch from
step due to natural wear).
The present case is also distinguishable from cases cited
by Newport involving municipal defendants. Municipal defendants
are aided by a statute that limits liability for injuries
resulting from defects in public ways. See G. L. c. 84, § 15
(road-defect statute). That statute embodies the public policy
that municipalities "should not be liable for slight or trivial
imperfections in public ways which might be caused by weather
conditions or traffic patterns." Doherty, 396 Mass. at 275.
Newport, however, is not a municipality subject to the road-
defect statute, and the alleged defect here was caused by
Newport, not weather conditions or traffic patterns. Contrast
Galante v. Brockton, 305 Mass. 480, 481 (1940) (city not liable
for injury to pedestrian who fell due to "slight sinking and
tipping of the curb" away from the sidewalk where requirement of
"perfect alignment would bear heavily upon municipalities");
Vellante v. Watertown, 300 Mass. 207, 208 (1938) (town not
liable for injury to pedestrian who stumbled on tilting sidewalk
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perhaps caused by "freezing and thawing of the ground" where
"actionable defect would cast an undue burden upon
municipalities").2
Newport asks us to extend the road-defect statute and
standards of limited municipal liability to its own conduct
because the burden placed on a contractor will inevitably be
passed along to a municipality through a higher contract price.
We decline to do so. The Supreme Judicial Court has limited the
reach of the road-defect statute, and cases imposing liability
under it, to "the county, city, town, or person required to
perform the public duty of maintaining the way and not to a
private corporation that causes a defect in the way, even where
the private entity has been authorized by a governmental entity
to perform a particular function causing a defect in the way."
Meyer, 482 Mass. at 218. Stated another way, the road-defect
2 Other cases cited by Newport are also inapposite. See
Swenson v. Boston, 317 Mass. 295, 295-296 (1944) (city not
liable for injury to pedestrian who tripped on streetcar rail
protruding two inches above roadway where actionable defect
would "cast an undue burden on municipalities"); Rowett v. North
Adams, 288 Mass. 50, 50-51 (1934) (city not liable for injury to
pedestrian who stepped in hole while crossing paved street where
testimony did not describe the "area, depth, or other features
of the so-called 'hole'"); Beaumier v. Heath, 282 Mass. 312,
313, 315-316 (1933) (town not liable for injury to vehicle
passenger caused by hole in cobblestone road where town lacked
reasonable notice of defect and opportunity to repair); Newton
v. Worcester, 174 Mass. 181, 188 (1899) (city not liable for
injury to pedestrian who fell on brick sidewalk where varying,
smooth depressions up to two inches did not render sidewalk
unsafe).
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statute "applies only to those entities that have a public duty
to maintain the way, not to private parties causing particular
defects." Id. at 221.
Conclusion. Summary judgment is sometimes but "rarely"
warranted in negligence cases, which usually present questions
of fact for the jury. Zavras v. Capeway Rovers Motorcycle Club,
Inc., 44 Mass. App. Ct. 17, 21 (1997). This is not such a rare
case. The judgment for Newport is vacated, and the matter is
remanded to the Superior Court for further proceedings
consistent with this opinion.
So ordered.